This week marks the anniversary of women getting the right to vote. That was codified as the 19th amendment to the Constitution on August 26th, 1920. But the status of another amendment remains uncertain.
Previously, we reported on the history, writing and ratification of the 28th amendment, the Equal Rights Amendment. Opinions differ on whether it offers people protections under the law, regardless of gender, or if there’s still work to do.
Syracuse University History and Political Science Professor Margaret Susan Thompson recalls President Joe Biden calling the ERA the ‘law of the land’,
“At the time he said it, Biden was the President. And his statements, it would seem to me, have at least as much force of law as some of the executive orders that President Trump has issued,” said Thompson.
However, she acknowledged it remains unclear if someone could lean on the 28th amendment in an equality case. “It hasn’t made it to the Supreme Court (of the United States), which would be the ultimate authority. And … it’s hard to know what this Supreme Court would determine.”
Women’s history expert Ciarrai Eaton, Executive Director of the famed suffragist Matilda Joslyn Gage Center, said she’s even less certain. Eaton noted the ERA would give women an ultimate protection for equal protection for crimes such as sexual assault, equality measures and personal decisions at the highest level.
“We have such variance of laws protecting women between the states that having one overarching, enshrining law, saying these are the expectations of our nation in protecting women. Women then have a recourse that if they’re not getting protected in their state, they can take it to a federal level. Right now, they don’t have that option.”
Local experts are not the only ones divided on the question of whether the ERA is officially the 28th amendment, or if it is enforceable at all.
The American Bar Association made a declaration recognizing the ERA as the 28th amendment and supported its implementation. The League of Women Voters echoed former President Biden, calling it the ‘law of the land’. Other groups, such as the non-partisan Center for American process similarly confirmed that they accept the ERA as ratified.
Many contend that until it’s written into the Constitution, the amendment has no legal authority. Notably, it is not part of the Constitution as written in the National Archives or at the National Constitution Center.
Thompson said she believes the issue would be settled when a case either citing or challenging the ERA goes to the Supreme Court. She said that it will likely be a case that hinges on “the symbolic endorsement of the equality of people regardless of sex.” And, she suggested that case might not involve women’s rights, from where the movement started more than 100 years ago.
“If we see challenges, it’s not going to be on the basis of men and women. It’s going to be on the basis of non-binary, gender fluid, trans. But I think the symbolic value of saying that sex is not a hierarchical matter of identity, with one being superior to the other.”
Eaton said she’s of the belief that work needs to be done. She’d like to see Congress take up the issue, determine if ratification was complete, and if not plot a path forward. She emphasized there are too many ‘ifs’.
“The job of the people, if we want the ERA passed, is to make it so they can’t ignore us. They can’t ignore the fact that the people want this done, and we need clarity on what’s the timeline, what’s the process, how do we get from where we are now to actually codifying this law.”
Eaton quoted the civil rights pioneer Matilda Gage in saying the protections of the ERA belong in the document that is the law of the land.
“There’s a word sweeter than mother, home or heaven, and that word is liberty. We need women’s liberty enshrined in the constitution, and that’s what the ERA would do.”
